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THE 12TH LAWASIA INTERNATIONAL MOOT COMPETITION

KUALA LUMPUR REGIONAL CENTRE FOR ARBITRATION

2017

BETWEEN

ASAMURA INTERNATIONAL DEVELOPMENT CO., LTD

(CLAIMANT)

AND

SHWE PWINT THONE CO., LTD

(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

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TABLE OF CONTENTS

TABLE OF AUTHORITIES..................................................................................................5

STATEMENT OF JURISDICTION....................................................................................10

QUESTIONS PRESENTED..................................................................................................11

STATEMENT OF FACTS....................................................................................................13

SUMMARY OF PLEADINGS..............................................................................................16

PLEADINGS...........................................................................................................................18

I. ALL SUBSTANTIVE DISPUTES IN THIS ARBITRATION ARE GOVERNED

BY MYANMAR LAW ............................................................................................. 18

A. The Parties chose Myanmar law to govern all substantive disputes arising from

their relationship .................................................................................................. 18

B. Alternatively, should the Parties’ choice of law only apply to contractual

disputes arising from the Agreement, Myanmar law applies to the remaining

substantive disputes under the applicable choice-of-law rules .......................... 19

(1) Japanese choice-of-law rules apply to determine the law governing the

remaining substantive disputes in this arbitration......................................... 20

(2) The remaining substantive disputes in this arbitration are governed by

Myanmar law ................................................................................................. 20

II. THE AGREEMENT BETWEEN THE PARTIES WAS VALIDLY

TERMINATED ........................................................................................................ 22

A. The relationship between the Parties is purely contractual as a partnership did

not exist ................................................................................................................. 22

(1) The Agreement was not entered into by two or more persons ....................... 23

(2) The Venture was not carried on by all persons ............................................. 24

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B. SPT validly terminated the agreement under Section 39 ................................... 25

(1) The Statement is attributable to AID ............................................................. 26

(2) AID breached Clauses 5 and 11 due to the Statement which allowed SPT to

terminate the Agreement ................................................................................ 27

(a) Clauses 5 and 11 are Fundamental Terms .............................................. 28

(b) AID breached Clause 5 ........................................................................... 29

(c) AID breached Clause 11 ......................................................................... 30

(3) SPT validly elected to terminate the Agreement ............................................ 33

(a) SPT did not affirm the continuance of the Agreement ........................... 33

(b) SPT unequivocally communicated its election to terminate ................... 35

C. Even if a partnership exists between the Parties, the Agreement was still validly

terminated ............................................................................................................. 35

III. SPT IS THE LEGAL OWNER OF THE EQUIPMENT ..................................... 36

A. SPT is the legal owner of the Equipment through a gift by AID ....................... 36

There was sufficient delivery of the Equipment to SPT ................................. 37

AID had the intention to transfer ownership of the Equipment to SPT ......... 37

SPT accepted the Equipment ......................................................................... 38

B. Even if a partnership is found between the Parties, SPT remains the legal

owner of the Equipment ....................................................................................... 39

IV. THE JADEYE DISPUTE IS ARBITRABLE IN THIS ARBITRATION .......... 40

The curial law governing the arbitration is Japanese law ................................. 40

B. Copyright issues are arbitrable under Japanese law .......................................... 40

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V. JADEYE IS NOT PROTECTED BY A COPYRIGHT IN MYANMAR ........... 41

JADEYE is not a literary work ............................................................................ 41

B. JADEYE was not published in Myanmar ........................................................... 43

C. Yamashita was not a resident of Myanmar when JADEYE was made.............. 43

The Second Resident Interpretation should be adopted ................................ 44

Yamashita does not fulfil the Second Resident Interpretation of “resident”. 44

VI. EVEN IF JADEYE WAS PROTECTED UNDER THE MYANMAR

COPYRIGHT ACT, SPT OWNS THE COPYRIGHT IN EQUITY .................. 45

Yamashita owned the JADEYE copyright .......................................................... 45

B. Yamashita assigned the JADEYE copyright to the Parties jointly in equity ..... 46

VII. EVEN IF AID OWNS THE JADEYE COPYRIGHT, SPT DID NOT INFRINGE

ON THE COPYRIGHT ........................................................................................... 47

PRAYER FOR RELIEF........................................................................................................48

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INDEX OF AUTHORITIES

STATUTES

Arbitration Law (Law No. 138 of 2003) (Japan) ..............................................................21, 40

Contracts Act 1950 (Act No. 136 of 1974) (Malaysia)............................................................27

Copyright Act (Burma Code Vol. X Part XXI) (Myanmar)..................................41, 44, 45, 46

Partnership Act 1890 (53 & 54 Vict. c. 39) (UK)....................................................................39

Partnership Act 1932 (Act No. IX of 1932) (India)...........................................................22, 39

The Contract Act (Burma Code Vol. IX Part XI) (Myanmar)...........................................25, 27

The Partnership Act (Burma Code Vol. IX Part XIV) (Myanmar) ...................................22, 39

Transfer of Property Act (Burma Code Vol. X Part XVII) (Myanmar).............................36, 37

CASES

Adoption Application (No 52 of 1951) [1951] Ch 16.........................................................43, 44

Arjun Kanoji Tankar v Santaram Kanoji Tankar (1969) 3 SCC 555......................................39

Asokan v Lakshmikuty 2008 (70) ALR 311.............................................................................37

Boda Narayana Murthy And Sons v Valluri Venkata Suguna AIR 1978 AP 257...................39

Byrne v Statist Co. [1914] 1 KB 622.......................................................................................46

Capt R.B. D’vaz v Mrs Celine D’vaz [1947] RangLR 292......................................................43

Computer Edge Pty Ltd v Apple Computer Inc [1986] 65 ALR 33.........................................42

Cosmos Holidays Plc v Dhanjal Investments Ltd [2009] EWCA Civ 316..............................31

D.D. Grover v A.C. Koonda Controller of Rent Mandalay [1955] BLR 54............................43

Dulichand Lakshminarayan v The Commissioner of Income Tax, Nagpur AIR 1956 SC

354............................................................................................................................................22

EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379.....................................43

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Force India Formula One Team Ltd v Etihad Airway PJSC, Aldar Properties PJSC [2010]

EWCA Civ 1051......................................................................................................................33

Francis, Day & Hunter v Feldman & Co [1914] 2 Ch 728.....................................................43

Ganga Metal Refining Co. Pr. Ltd. vs Commissioner of Income Tax AIR 1967 Cal 429.......23

Goldstein v Bishop [2013] EWHC 881....................................................................................35

Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261.................................................................26

Kuppuswamy Chettiar v A.S.P.A. Arumugam Chettiar AIR 1967 SC 1395............................37

Laxmibai And Anr. vs Roshan Lal AIR 1972 Raj 288.............................................................22

Levene v Commissioners of Inland Revenue [1928] AC 217.......................................43, 44, 45

LMJ International v Owners and Parties Interested in the Vessel M.V. Osm Arena 2011 (2)

CHN 674..................................................................................................................................37

Low v Routledge [1868] LR 3 HL 100.....................................................................................44

Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173..............................24

McPhail v Bourne [2008] EWHC 1235 (Ch)...........................................................................22

Mohamed Valli Patel v The East Asiatic Co Ltd AIR 1936 Ran 319......................................18

Noah v Shuba [1991] FSR 14...................................................................................................46

Rubber Improvement Ltd v Daily Telegraph [1963] 2 WLR 1063..........................................32

Ryder v Frohlich [2004] NSWCA 472 (NSW) .......................................................................35

Sea Emerald SA v Prominvestbank [2008] EWHC 1979 (Comm)..........................................26

Sega Enterprises Ltd v Richards [1983] FSR 73.....................................................................42

Simpson v Teignmouth and Shaldon Bridge Company [1903] 1 KB 405................................42

Sitaram Kalani v Manmal AIR 1956 MP 60............................................................................24

Stocznia Gdanska SA v Latvian Shipping Co & Ors (No. 2) [2002] EWCA Civ 889.......33, 34

Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638....40

Suncorp Insurance and Finance v Milano Assicurazioni SPA [1993] 2 Lloyd’s Rep 84........26

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Tan Byan Seng v Ellermans Arracan Rice & Trading Co Ltd (1948) BLR 148......................19

Tan Hock Chan v Kho Teck Seng [1980] 1 MLJ 308...............................................................27

Tan Tien Seng & anor v Grobina Resorts Sdn Bhd (2005) 7 MLJ 590...................................28

The Burma Oil Co., Ltd v Ma Hmwe Yin (1935) I.L.R., Ran 553............................................46

Travel Servs. Network, Inc. v. Presidential Fin. Corp. (1997) 959 F.Supp. 135.....................19

U Nyo v U Ko Ko Gyi [1950] BLR 147...................................................................................31

U On Khin v The Union of Burma [1952] BLR 158................................................................41

Western Front Ltd v Vestron Inc [1986] FSR 66.....................................................................46

ARBITRAL AWARDS

Award in ICC Case No. 8619...................................................................................................20

Award in ICC Case No. 9771...................................................................................................20

Final Award in ICC Case No. 14667.......................................................................................21

Preliminary Award in ICC Case No. 5505...............................................................................20

TREATISES

Adrian Briggs, Andrew Burrows, The Law of Contract in Myanmar (Ashford Colour Press,

2017).........................................................................................................................................18

David Bainbridge, Software Copyright Law (Butterworths, 1999, 4th Ed).............................47

Dicey, Morris and Collins on The Conflict of Laws (L. Collins Gen. Ed.) (Sweet & Maxwell,

2006, 14th Ed)....................................................................................................................20, 21

Francis Bennion, Bennion on Statutory Interpretation (2008, LexisNexis, 5th Ed).................41

Franco Ferrari, Stefan Kröll, Conflict of Laws in International Arbitration (Sellier European

Law Publishers, 2010) .............................................................................................................20

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Gary Born, International Commercial Arbitration (Kluwer Law International, 2014, 2nd

Ed) ...............................................................................................................................18, 19, 20

Grigera Naón, Horacio A., Choice-of-Law Problems in International Commercial Arbitration

(Volume 289) (The Hague Academy of International Law, 2001) ..........................................20

Kevin Garnett et al, Copinger and Skone James on Copyright (2011, Sweet & Maxwell, 16th

Ed)............................................................................................................................................46

M. Saharay, Textbook on Indian Partnership Law with Limited Liability Partnership Act

(Universal Law Publishing, 2010) ..........................................................................................35

Michael Bridge, Personal Property Law (Oxford University Press, 2015, 4th Ed)..........36, 37

Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University

Press, 2015, 6th Ed) ...........................................................................................................20, 40

Roderick I’anson Banks, Lindley & Banks on Partnership (Sweet & Maxwell, 19th Ed,

2010).........................................................................................................................................39

Trevor Cook and Alejandro L. Garcia, International Intellectual Property Arbitration

(Kluwer Law International, 2010) .....................................................................................21, 41

V. Sinnadurai, Law of Contract Vol. 2 (LexisNexis, 2011, 4th Ed)............................27, 33, 35

ARTICLES

Andreas Grosche, “Software Patents – Boon or Bane for Europe?” (2006) Int’l J.L. & Info.

Tech. 257..................................................................................................................................42

Neil Hawke, “The Problems and Perspectives of Copyright Protection for Computer Software

in English Law” (1986) 2 Y.B.L. Computers & Tech.............................................................42

Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books,

Photocopies and Computer Programs” (1970) 84 Harv. L. Rev. 281......................................42

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REFERENCE MATERIALS

A. K. M. Ahsan Ullah, “Rohingya Crisis in Myanmar: Seeking Justice for the ‘Stateless’”

2016 32(3) Journal of Contemporary Criminal Justice 285.....................................................33

English Oxford Living Dictionary, Oxford University Press...................................................32

Iain McLean et al, “The concise Oxford dictionary of politics (Oxford University Press, 2003,

2nd Ed).....................................................................................................................................31

Mikael Gravers, Nationalism as Political Paranoia in Burma (Taylor & Francis, 2005, 3rd

Ed)............................................................................................................................................29

Ministry of Information, The New Light of Myanmar (9 September 2008) ............................31

Myanmar Conflict Alert: A Risky Census, International Crisis Group (12 February

2014).........................................................................................................................................32

Myanmar Newspapers - Myanmar Newspaper & News Media Guide, ABYZ Web Links

Inc.............................................................................................................................................31

The Government of the Republic of the Union of Myanmar Ministry of Foreign Affairs,

“Press Release on Situation in Rakhine State” ........................................................................31

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STATEMENT OF JURISDICTION

The parties, Asamura International Development Co., Ltd and Shwe Pwint Thone Co., Ltd,

have agreed to submit the present dispute to arbitration in Tokyo in accordance with the

Kuala Lumpur Regional Centre for Arbitration i-Arbitration Rules.

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QUESTIONS PRESENTED

1. Whether Myanmar law is the law governing all substantive disputes in the arbitration:

a. Whether Myanmar law governs all substantive disputes in the arbitration

pursuant to the parties’ choice of law in the agreement between SPT and

AID (“Agreement”); and

b. Even if parties’ choice of law does not apply to all substantive disputes,

whether the applicable choice-of-law rules indicate that Myanmar law

governs the disputes that do not fall within the parties’ choice of law clause.

2. Whether the Agreement was validly terminated:

a. Whether the parties were in a purely contractual relationship or were

otherwise in a partnership;

b. If the parties were in a purely contractual relationship, whether SPT had

validly terminated the Agreement under the Myanmar Contract Act; and

c. If a partnership is found to exist between the parties, whether the

partnership between SPT and AID was validly dissolved.

3. Whether SPT is the legal owner of the jade-mining machinery and equipment:

a. Whether AID transferred ownership of the jade-mining machinery and

equipment to SPT through a gift; and

b. In the event that a partnership is found to exist between the parties, whether

the jade-mining machinery and equipment constituted partnership property.

4. Whether the issues of subsistence and ownership of rights in JADEYE are arbitrable:

a. Whether the curial law governing the arbitration is that of Japanese law;

and

b. Whether intellectual property issues are arbitrable under Japanese law.

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5. Whether JADEYE is protected by a copyright in Myanmar:

a. Whether JADEYE is protected under the Myanmar Copyright Act as a

literary work; and

b. Whether JADEYE was published in Myanmar or authored when Joe

Yamashita was a resident of Myanmar.

6. Whether SPT owns the JADEYE copyright:

a. Whether Joe Yamashita owned the JADEYE copyright; and

b. Whether Joe Yamashita assigned the JADEYE copyright to SPT and AID

jointly in equity.

7. Whether SPT had infringed on the JADEYE copyright.

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STATEMENT OF FACTS

1. The Claimant, Asamura International Development Co., Ltd (“AID”), is a private

international development company specialising in crisis relief and development. AID

is managed by Dr Yugi Asamura (“Asamura”). Asamura is married to Dr Fiona Lum

(“Lum”), a non-executive director of AID and the President of Second Life, a

regional organisation which champions human rights.

2. The Respondent, Shwe Pwint Thone Co., Ltd (“SPT”), is owned by U Thein Kyaw

(“Kyaw”). SPT is a Myanmar company which aims to provide secular and vocational

training to students from underprivileged families. SPT runs teashops, jade carving

and polishing studios, and training centres.

3. In 2007, the junta gifted 80 acres of land in Hpakant to Kyaw, which was believed to

contain a huge amount of jade deposits. SPT’s main objectives regarding the land

were to develop new skill sets for its students, to create jobs in Hpakant for the local

community, to increase revenue to fund training centres, and to ensure sustainable and

safe extraction of jade. However, while familiar with jade carving and polishing

techniques, Kyaw had no experience in jade exploration and production.

4. In May 2008, Cyclone Nargis hit Myanmar, destroying thousands of buildings and

taking away many lives. AID participated in rebuilding the town of Labutta. Kyaw

was deeply moved by AID’s efforts in Labutta.

5. Subsequently, Kyaw contacted Asamura to discuss the prospects of SPT working

together with AID in relation to a jadeite venture (“Venture”). Asamura was very

impressed by Kyaw’s aspirations and on 9 September 2008, SPT and AID

(collectively, “Parties”) entered into an agreement (“Agreement”). Clauses 3, 4, and

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6 list the delegation of duties between the Parties for the Venture. Clause 5

emphasises the priority to be given to the employees and students of SPT, while

clause 11 states that AID “cannot do or say anything harmful to the national interest

and solidarity of Myanmar”. Clause 10 states the Parties’ choice of law as Myanmar

law.

6. In accordance with the Agreement, AID sourced, purchased and reconditioned the

jade-mining machinery and equipment (“Equipment”), which were imported into

Myanmar by SPT in January 2009. SPT was addressed as the consignee of the

Equipment on the bill of lading. AID provided employees on secondment from Japan

to assist in the technical aspects of the Venture as well as to impart knowledge to

SPT’s employees and students. In return, SPT handled the paperwork required for the

AID employees and obtained the government permits necessary to run the Venture,

which listed SPT as the owner and importer of the Equipment.

7. Three years later, Joe Yamashita (“Yamashita”), an AID finance executive,

developed a process optimisation and operations management software named

“JADEYE” which expedited assessment work of the jade. After a successful trial,

Asamura ordered the software to be installed on all computers and equipment used by

the Venture. Delighted with JADEYE, Kyaw attempted to pay Yamashita for the

software, but he declined, stating that the software was “for the benefit of all of us”.

8. Throughout this time, the Venture was largely successful. However, problems arose

after an interview with Asian Influencers Magazine involving Asamura and Lum was

published in September 2016. During the interview, Lum made a statement

concerning the Rohingya minority in the Rakhine state. Many of SPT’s employees

and students were upset by Lum’s statement as it implied that the government was

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involved in ethnic cleansing. As a result, 102 of these employees and students went on

a seven-day strike. Kyaw eventually managed to coax the employees and students to

resume their duties, but four months later, their morale remained at an all-time low as

they had lost respect for their Japanese counterparts.

9. On 10 January 2017, Kyaw informed Asamura that SPT wanted to end the Venture

with AID. Kyaw cited the interview and its impact on employee morale as a reason

for being unable to continue working with AID. Asamura protested that SPT had no

right to terminate the Agreement.

10. Kyaw claimed ownership over the Equipment as SPT had imported the Equipment,

and were listed as owners and operators of the Equipment. Kyaw also claimed

ownership over the JADEYE software. However, Asamura disputed the ownership

claims, and refused to provide Kyaw with the JADEYE source code.

11. Unable to resolve matters, the Parties submitted the disputes to binding arbitration.

The venue of arbitration is Tokyo, Japan, and the arbitration is to be conducted in

accordance with the Kuala Lumpur Regional Centre for Arbitration i-Arbitration

Rules.

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SUMMARY OF PLEADINGS

A. The law governing the substantive disputes contested in this arbitration is

Myanmar law

Shwe Pwint Thone Co., Ltd (“SPT”) and Asamura International Development Co.,

Ltd (“AID”, collectively “Parties”) chose Myanmar law to govern all substantive

disputes arising from their relationship. Alternatively, should the Parties’ choice of

law only apply to contractual disputes arising from the “Partnership Agreement”

(“Agreement”), Myanmar law applies to all remaining substantive disputes under the

relevant choice-of-law rules.

B. The Agreement between the Parties was validly terminated

The legal nature of the Agreement between the parties is purely contractual. The

statement made by Dr. Fiona Lum during the Asian Influencers Magazine interview is

attributable to AID. By way of the Statement, AID breached Clauses 5 and 11, which

allowed SPT to elect to terminate the Agreement. SPT validly elected to terminate the

Agreement. In the event a partnership exists between the Parties, SPT terminated the

Agreement through section 39 of the Myanmar Contract Act as section 39 still applies

to partnership contracts.

C. SPT is the legal owner of the jade-mining machinery and equipment

SPT is the legal owner of the jade-mining machinery and equipment (“Equipment”)

as there was a valid consensual transfer of ownership of the Equipment by gift from

AID to SPT. AID delivered the Equipment to SPT with the intention to transfer

ownership to SPT. SPT had also accepted the Equipment.

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In the event a partnership exists between the Parties, the Equipment does not

constitute partnership property as the Parties did not intend for the Equipment to

constitute partnership property.

D. The issues of subsistence and ownership of rights in the JADEYE software are

arbitrable in the arbitration

The issues of subsistence and ownership of rights over the JADEYE software are

arbitrable as the curial law governing this arbitration is that of Japanese law, and

copyright issues are arbitrable under Japanese law.

E. AID cannot prevent SPT from reverse engineering JADEYE

AID cannot prevent SPT from reverse engineering JADEYE as JADEYE is not

protected under the Myanmar Copyright Act. JADEYE is not considered a literary

work under the Copyright Act, and was not published in Myanmar or made whilst

Yamashita was a resident in Myanmar. Even if JADEYE was protected under the

Copyright Act, SPT owns the JADEYE copyright in equity.

F. Even if AID owns the JADEYE copyright, SPT had not infringed on the

copyright

SPT has neither committed nor threatened any acts of reverse engineering. Even if

SPT has threatened to reverse engineer JADEYE it is not presently possible to

determine whether it constitutes a copyright infringement.

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PLEADINGS

I. ALL SUBSTANTIVE DISPUTES IN THIS ARBITRATION ARE GOVERNED

BY MYANMAR LAW

1. Shwe Pwint Thone Co., Ltd (“SPT”) and Asamura International Development Co.,

Ltd (“AID”, collectively “Parties”) chose Myanmar law to govern all substantive

disputes arising from their relationship (A). Alternatively, should the Parties’ choice

of law only apply to contractual disputes arising from the “Partnership Agreement”

(“Agreement”), Myanmar law applies to the remaining substantive disputes under the

relevant choice-of-law rules (B).

A. The Parties chose Myanmar law to govern all substantive disputes arising from

their relationship

2. The KLRCA i-Arbitration Rules (“KLRCA Rules”) apply to this arbitration.1 Under

Article 35(1) of the KLRCA Rules, parties to the arbitration are free to select the

substantive law applicable to their disputes.2 The Parties have stipulated a choice-of-

law clause in the Agreement which provides that “everything will be in accordance

with and interpreted” under Myanmar law.3

3. Under Myanmar law, contractual clauses are interpreted based on the parties’

intentions at the point of contracting, objectively ascertained through the

circumstances.4 Where there is a written contract, the intention of the parties is to be

1 Moot Problem at [47]. 2 Gary Born, International Commercial Arbitration (Kluwer Law International, 2014, 2nd Ed) (“Born”) at 2670. 3 Moot Problem, Annexure 1, Clause 10. 4 Mohamed Valli Patel v The East Asiatic Co Ltd AIR 1936 Ran 319, discussed in Adrian Briggs, Andrew

Burrows, The Law of Contract in Myanmar (Ashford Colour Press, 2017) at 133.

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assessed by giving every term its ordinary meaning.5 Thus, when a choice-of-law

clause is phrased broadly, the clause would have been intended by the parties to

govern all substantive disputes arising from their relationship.6

4. Given the expansiveness of the term “everything”, clause 10 of the Agreement

evidences the Parties’ intention for Myanmar law to govern all aspects of their

relationship. Therefore, in accordance with parties’ intentions and the terms of the

Agreement, Myanmar law governs all substantive disputes arising from their

relationship.

B. Alternatively, should the Parties’ choice of law only apply to contractual disputes

arising from the Agreement, Myanmar law applies to the remaining substantive

disputes under the applicable choice-of-law rules

5. Should a choice-of-law clause be limited to contractual disputes arising from the

contract, the law governing any remaining substantive disputes is determined by the

relevant choice-of-law rules.7 Here, Japanese choice-of-law rules apply to determine

the law governing the remaining substantive disputes in this arbitration (1) and

Japanese choice-of-law rules indicate that the remaining disputes in this arbitration

are governed by Myanmar law (2).

5 Tan Byan Seng v Ellermans Arracan Rice & Trading Co Ltd (1948) BLR 148 at 151-152. 6 Travel Servs. Network, Inc. v. Presidential Fin. Corp. (1997) 959 F.Supp. 135 at 146; Born, supra n 2, at 2741. 7Born, supra n 2 , at 2624.

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(1) Japanese choice-of-law rules apply to determine the law governing the remaining

substantive disputes in this arbitration

6. Where parties have not indicated the applicable substantive law, the choice-of-law

rules stated in the institutional rules chosen by the parties should apply.8 Article 35(1)

of the KLRCA Rules provides that the tribunal is to apply the substantive law it

deems “appropriate” by selecting any choice-of-law rule.9

7. In selecting a choice-of-law rule, the choice-of-law rule of the arbitral seat should be

applied.10 The parties’ choice of arbitral seat constitutes an implied acceptance of the

choice-of-law rules of that state. 11 Subject to contrary agreement, the place of

arbitration is taken to be the arbitral seat.12 Here, the Parties agreed for the place of

arbitration to be Tokyo and did not draw a distinction between the place and seat of

arbitration.13 Therefore, Japan is deemed as the arbitral seat and Japanese choice-of-

law rules apply to the remaining substantive disputes in this arbitration.

(2) The remaining substantive disputes in this arbitration are governed by Myanmar law

8. There are two remaining substantive disputes in this arbitration. First, the ownership

of rights in the jade-mining machinery and equipment (“Equipment Dispute”) and

secondly, the ownership and subsistence of rights in the JADEYE software

(“JADEYE Dispute”).

8 Id, at 2634–2635. 9 Id, at 2643. 10 Id, at 2658; Award in ICC Case No. 9771, IXXX Y. B. Comm. Arb. 46 (2004) at 52-53; Franco Ferrari,

Stefan Kröll, Conflict of Laws in International Arbitration (Sellier European Law Publishers, 2010) at 286. 11 Award in ICC Case No. 8619, discussed in Grigera Naón, Horacio A., Choice-of-Law Problems in

International Commercial Arbitration (Volume 289) (The Hague Academy of International Law, 2001) at 230. 12 Preliminary Award in ICC Case No. 5505, XIII Y. B. Comm. Arb. 110 (1988) at [9]-[14]; Dicey, Morris and

Collins on The Conflict of Laws (L. Collins Gen. Ed.) (Sweet & Maxwell, 2006, 14th Ed) (“Dicey”) at [16-035];

Nigel Blackaby et al, Redfern and Hunter on International Arbitration (Oxford University Press, 2015, 6th Ed)

(“Blackaby”) at [3.53]. 13 Moot Problem at [47].

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9. Under Japan’s choice-of-law rules, both disputes are governed by Myanmar law.

Japan’s Arbitration Law provides that barring an agreement on the substantive law

applicable, the substantive law of the state most closely connected to the dispute

should be applied.14 This rule identifies the facts of the dispute connected to the

various states, weighs their significance, and applies the laws of the prevailing state.15

10. Regarding the Equipment Dispute, the state of closest connection for property

disputes should be the state where the property was situated when the alleged transfer

took place. 16 Any alleged transfer of the jade-mining machinery and equipment

(“Equipment”) between the Parties would have occurred in Myanmar.17 Additionally,

the Equipment was situated and employed in Myanmar for the past 8 years.18

11. Regarding the JADEYE Dispute, the state of closest connection for intellectual

property disputes is either the state where the intellectual property originated from or

is to be protected.19 JADEYE was created mainly in Myanmar by Joe Yamashita

(“Yamashita”), 20 and was first tested and implemented at the Hpakant site in

Myanmar.21 JADEYE is also to be protected in Myanmar as the Parties are contesting

the rights to use JADEYE in Myanmar. SPT threatened to reverse engineer

JADEYE22 whilst AID seeks to enforce a copyright against SPT in Myanmar.23

14 Arbitration Law (Law No. 138 of 2003) (Japan) (“Japan Arbitration Law”), Art 36(2). 15 Final Award in ICC Case No. 14667, XL Y. B. Comm. Arb. 51 (2011) at [121]-[122]. 16 Dicey, supra n 12, at [24R-001]. 17 Moot Problem at [43]. 18 Id at [16] and [50]. 19 Trevor Cook and Alejandro L. Garcia, International Intellectual Property Arbitration (Kluwer Law

International, 2010) (“Cook”) at 98. 20 Additional Clarification, Question 15. 21 Moot Problem at [23]. 22 Id at [44]. 23 Id at [48].

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12. Therefore, Myanmar law governs both disputes under the choice-of-law rules of Japan.

Accordingly, Myanmar law governs all substantive disputes contested in this

arbitration.

II. THE AGREEMENT BETWEEN THE PARTIES WAS VALIDLY

TERMINATED

13. The relationship between the Parties is purely contractual as a partnership did not

exist (A). As such, SPT validly terminated the Agreement under s 39 of the Myanmar

Contract Act (“Section 39”) (B). Even if a partnership exists between the Parties, the

Agreement was validly terminated (C).

A. The relationship between the Parties is purely contractual as a partnership did not

exist

14. Given that a partnership is based on a contract, where a partnership is not found, the

relationship between the parties is purely contractual.24 In determining whether a

partnership exists, the substance rather than the label of the contract is

determinative.25 Here, even though the Parties labelled the Agreement “Partnership

Agreement”, this label is not determinative and the substance of the Agreement must

be examined.

15. As s 4 of both the India Partnership Act 26 and Myanmar Partnership Act 27 are

identical, Indian case law is persuasive. Under Myanmar law, a partnership exists if

three elements are met:28

24 McPhail v Bourne [2008] EWHC 1235 (Ch) at [256]. 25 Laxmibai And Anr. vs Roshan Lal AIR 1972 Raj 288 at [9]. 26 Partnership Act 1932 (Act No. IX of 1932) (India) (“India Partnership Act”). 27 The Partnership Act (Burma Code Vol. IX Part XIV) (Myanmar) (“Myanmar Partnership Act”). 28 Dulichand Lakshminarayan v The Commissioner of Income Tax, Nagpur AIR 1956 SC 354 at [14].

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a. an agreement entered into by two or more persons;

b. an agreement to share the profits of a business; and

c. a business carried on by all persons, or any of those persons acting for all.

16. There was no partnership between the Parties as the Agreement was not entered into

by two or more persons (1) and the jadeite venture (“Venture”) was not carried on by

all persons (2).

(1) The Agreement was not entered into by two or more persons

17. For companies to be considered “persons” under s 4 of the Myanmar Partnership Act,

express authorisation from their articles or memorandum of association (“MOA”) to

enter a partnership is required. 29 This is to safeguard against shareholders being

subject to obligations they did not agree to. Without such authorisation, the board of

directors can bind the company to the liabilities of another, or grant access to the

company’s books and funds to third parties, without approval from the company’s

shareholders.30

18. Here, the Parties are incorporated companies, as evidenced by their registered

names.31 The facts do not suggest that the Parties had express authorisation by their

MOAs to enter into a partnership. Therefore, the Parties cannot be “persons” capable

of entering into a partnership.

29 Ganga Metal Refining Co. Pr. Ltd. vs Commissioner of Income Tax AIR 1967 Cal 429 at [20]-[22]. 30 Id, at [17]-[21]. 31 Moot Problem at [1], [7] and Annexure 1, Clause 1.

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(2) The Venture was not carried on by all persons

19. For a partnership to be carried on by all persons, it is required to operate as a single

business entity.32 In ascertaining whether a business operates as a single entity, two

factors are indicative:33

a. the business possesses its own capital; and

b. the business possesses its own employees.

20. The Venture did not possess its own capital. While the Parties injected capital

contributions into the Venture in March 2009,34 such contributions were only made to

fund operational costs for the first financial year.35 Further, the funds were held in

SPT’s bank account,36 and not one belonging to the Venture.

21. Additionally, the Venture did not have its own employees. In ascertaining whether

one is an employee of a party, two factors are indicative:37

a. the party’s control and management over the employee; and

b. the nature of payments made to the employee.

22. The Venture did not exercise control over the employees as the Parties only exercised

control over their own respective employees. AID seconded their employees from

Japan to Myanmar38 and Yamashita implemented the JADEYE software on-site only

on instruction from Yugi Asamura (“Asamura”).39 Further, the salaries of the AID

32 Sitaram Kalani v Manmal AIR 1956 MP 60 at [8]. 33 Ibid. 34 Moot Problem at [17]. 35 Ibid. 36 Ibid. 37 Market Investigations Ltd v Minister of Social Security [1969] 2 QB 173 at 184-185. 38 Moot Problem at [16]. 39 Id at [23]; Additional Clarifications, Question 32.

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employees working for the Venture were paid by AID.40 Similarly, SPT, through U

Thein Kyaw (“Kyaw”), managed to convince its employees to cease the strike,

despite them remaining unhappy about working with AID.41 Kyaw also recognised

that the employees worked for SPT alone.42

23. As the Venture did not possess its own capital or employees, it was not carried on by

all persons. Therefore, the Venture was not operating as a single business entity.

Accordingly, there was no partnership and the relationship between the Parties is

purely contractual.

B. SPT validly terminated the Agreement under Section 39

24. Given that the relationship between the Parties is purely contractual, termination of

the Agreement is governed by the Myanmar Contract Act.43

25. During an interview with the Asian Influencers Magazine, Dr. Fiona Lum (“Lum”)

stated that “[e]veryone must work together to end the persecution of the Rohingyas,

and the new Myanmar government… must end the problem immediately. Especially

the ethnic cleansing...” (“Statement”).44 SPT relied on the Statement made by Lum to

terminate the Agreement.45

26. In this regard, SPT validly terminated the Agreement under Section 39. The Statement

is attributable to AID (1). Due to the Statement, AID breached clauses 5 and 11 of the

Agreement (“Clause 5” and “Clause 11” respectively), which allowed SPT to

terminate the Agreement (2). SPT then validly elected to terminate the Agreement (3).

40 Additional Clarifications, Question 14. 41 Moot Problem at [30] and [38]. 42 Id at [41]. 43 The Contract Act (Burma Code Vol. IX Part XI) (Myanmar) (“Myanmar Contract Act”). 44 Moot Problem at [27]-[28]. 45 Moot Problem at [41].

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(1) The Statement is attributable to AID

27. The Statement is attributable to AID as AID assumed full responsibility for Lum’s

Statement by ratifying the Statement through its conduct regarding the issue.

Ratification by a principal through conduct occurs if three elements are met:46

a. the ratification must be carried out by the principal or a party who is

authorised to carry out or ratify the act in question;

b. the ratifying party must know of all the material circumstances of the act in

question; and

c. the ratifying party’s conduct must objectively show an intention to adopt

the act in question.

28. Here, all three elements have been satisfied. The first element is satisfied as AID itself

failed to qualify the Statement as being made in Lum’s own capacity, or issue any

clarifications regarding the Statement.

29. The second element is also satisfied as AID knew about the circumstances

surrounding the Statement. Knowledge of a director relevant to the company's affairs

can be imputed to the company.47 Here, Asamura, the Chairman of AID,48 knew about

the Statement as he was present during the interview.49 Such knowledge was relevant

to AID’s affairs as the Statement caused SPT’s employees and students to go on strike

46 Sea Emerald SA v Prominvestbank [2008] EWHC 1979 (Comm) at [102]; Suncorp Insurance and Finance v

Milano Assicurazioni SPA [1993] 2 Lloyd’s Rep 84 at 234. 47 Jafari-Fini v Skillglass Ltd [2007] EWCA Civ 261 at [98]. 48 Moot Problem at [29]. 49 Moot Problem at [27].

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and request Asamura and Lum to apologise and retract the Statement.50 As such,

Asamura’s knowledge can be imputed to AID.

30. The third element is satisfied as the actions of AID and Asamura evidenced an

intention by AID to adopt the Statement. AID failed to clarify or qualify the

Statement and Asamura refused to retract the Statement or apologise.51 This is despite

knowledge of the hurt caused to SPT’s employees and students52 and the economic

damage caused to the Venture by the strike.

31. Therefore, as all three elements are satisfied, the Statement was ratified by AID.

(2) AID breached Clauses 5 and 11 due to the Statement which allowed SPT to terminate

the Agreement

32. Section 39 provides that a contract may be terminated when a party has refused to

perform or has disabled himself from performing his promise in his entirety.53 As

Section 39 is identical to s 40 of the Malaysia Contracts Act,54 Malaysian case law is

persuasive. Under Section 39, an innocent party can elect to terminate a contract if the

other party breached an essential part of the contract (“Fundamental Term”).55 Here,

Clauses 5 and 11 are Fundamental Terms (a). AID refused to perform both Clause 5

(b) and Clause 11 (c), which allowed SPT to terminate the Agreement.

50 Id at [29]. 51 Id at [30]. 52 Id at [29]. 53 Myanmar Contract Act, supra n 43, s 39. 54 Contracts Act 1950 (Act No. 136 of 1974) (Malaysia). 55 Tan Hock Chan v Kho Teck Seng [1980] 1 MLJ 308 at [21]; V. Sinnadurai, Law of Contract Vol. 2

(LexisNexis, 2011, 4th Ed) (“Sinnadurai”) at [12.30].

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(a) Clauses 5 and 11 are Fundamental Terms

33. A term is fundamental where the promisee would not have contracted unless assured

of substantial performance of that term and this ought to have been apparent to the

promisor. 56 In ascertaining whether a term is fundamental, several factors are

indicative:57

a. the construction of the contract when it was made;

b. the surrounding circumstances at the formation of the contract; and

c. the intention of the parties.

34. Here, the underlying rationale for the Parties to enter into the Agreement was to

benefit the local Myanmar community, especially SPT’s employees and students. SPT

approached AID to partake in the Venture, despite AID having no expertise in jade-

mining,58 solely on the basis of SPT’s appreciation for AID’s earlier rebuilding works

in Labutta, Myanmar.59 Similarly, Asamura was impressed by Kyaw’s aspirations to

give back to the local community and wanted to expand AID’s work to the Kachin

state.60 It was due to this mutual commitment to improve the lives of the local

Myanmar community that the Parties agreed to embark on the Venture.

35. Clause 5 is a Fundamental Term as it evidences the underlying rationale of the

Agreement of benefiting the local Myanmar community. Clause 5 emphasises the

benefits that the Venture is to bring to the local Myanmar community and imposes on

the Parties an obligation to prioritise SPT’s employees and students. Given the

56 Tan Tien Seng & anor v Grobina Resorts Sdn Bhd (2005) 7 MLJ 590 at 602A. 57 Id at 601G. 58 Moot Problem at [2]. 59 Id at [6]-[7]. 60 Id at [13].

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circumstances, SPT would not have entered into the Agreement unless it had been

assured of substantial performance of Clause 5, which would have been apparent to

AID. Therefore, Clause 5 is a Fundamental Term of the Agreement.

36. Similarly, Clause 11 is a Fundamental Term. Clause 11 was to ensure that the Parties

“show respect towards [Myanmar]” by not saying or doing anything harmful to the

national interest or solidarity of Myanmar. 61 The inclusion of Clause 11 is in

furtherance of the underlying rationale of the Agreement to benefit the local Myanmar

community.62 Given that the Myanmar community is very nationalistic,63 a breach of

Clause 11 is likely to severely upset the Myanmar community and inflame existing

ethnic tensions. Hence, SPT would not have entered into the Agreement unless it had

been assured of substantial performance of Clause 11, which would have been

apparent to AID. Therefore, Clause 11 is a Fundamental Term of the Agreement.

(b) AID breached Clause 5

37. AID breached Clause 5 as it did not prioritise SPT’s employees and students. Clause 5

should be interpreted in accordance with the Parties’ intentions at the formation of the

Agreement, ascertained objectively from the circumstances.64

38. Clause 5 states that AID is obliged to prioritise SPT’s employees and students.65 The

intention of the Parties was for the Venture to benefit the Myanmar people holistically.

Besides creating more jobs through the Venture, 66 Kyaw also wanted to provide

61 Moot Problem, Annexure 1, Clause 11. 62 Respondent Memorial at [34]. 63 Mikael Gravers, Nationalism as Political Paranoia in Burma (Taylor & Francis, 2005, 3rd Ed) at 135-136. 64 Respondent Memorial at [3]. 65 Moot Problem, Annexure 1, Clause 5. 66 Moot Problem at [11].

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secular training for the Myanmar community67 and ensure that the Venture ran safely

and sustainably.68 Additionally, Asamura wanted to expand AID’s humanitarian work

to Kachin state.69 Therefore, Clause 5 ought to be interpreted as requiring AID to

prioritise the holistic well-being of the employees and students, which includes their

economic and social well-being.

39. AID, through its silence on the Statement, failed to reasonably prioritise the social

well-being of SPT’s employees and students.70 The Statement caused 102 of SPT’s

employees and students to go on strike for 7 days.71 While Kyaw was able to coax the

employees and students back to their duties,72 their morale remained low as they had

lost respect for AID.73 Had AID prioritised the social well-being of the employees and

students, Asamura and Lum could have simply retracted the Statement and apologised.

AID could at least have adopted a neutral stance by qualifying the Statement as not

being representative of the company's views. Yet, AID failed to do so. Therefore, AID

was in breach of Clause 5.

(c) AID breached Clause 11

40. AID breached Clause 11 as the Statement was harmful to the national interest and

solidarity of Myanmar. As a contract ought to be interpreted according to the

intentions of the parties objectively ascertained,74 where the contracting parties are

67 Id at [7]. 68 Id at [10]. 69 Id at [13]. 70 Id at [30]. 71 Id at [29]. 72 Id at [30]. 73 Id at [38]. 74 Respondent Memorial at [3].

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laymen, the contract ought to be given its ordinary meaning ascertained from the

circumstances.75

41. Here, both Asamura and Kyaw drafted the Agreement as laymen without any legal

advice.76 The ordinary meaning of the terms “national interest” and “solidarity” in

Clause 11 may be ascertained from English newspapers in Myanmar or dictionaries,

as the Parties would likely have been influenced by such sources as non-native

English users.

42. National interest ought to refer to the promotion of peace and stability within

Myanmar. Community peace and stability in Myanmar were published as objectives

of Myanmar in one of the few English newspapers widely available in Yangon,77

“The New Light of Myanmar”. 78 This meaning is further corroborated by the

dictionary meaning of national interest, which has been defined as the interests of a

state, usually determined by its government. 79 The Government of Myanmar

prioritises ensuring peace and stability within Myanmar, and has repeatedly called for

the observation of harmony with respect to the Rohingya minority in the Rakhine

state.80

75 U Nyo v U Ko Ko Gyi [1950] BLR 147 at 150; Cosmos Holidays Plc v Dhanjal Investments Ltd [2009]

EWCA Civ 316 at [15]-[16]. 76 Moot Problem at [14]-[15]. 77 “Myanmar Newspapers - Myanmar Newspaper & News Media Guide”, ABYZ Web Links Inc.,

<http://www.abyznewslinks.com/myanm.htm> (accessed 29 July 2017). 78 Ministry of Information, The New Light of Myanmar (9 September 2008)

<http://www.burmalibrary.org/docs5/NLM2008-09-09.pdf> (accessed 29 July 2017) at 1. 79 Iain McLean et al, “The concise Oxford dictionary of politics (Oxford University Press, 2003, 2nd Ed) at p

360. 80 The Government of the Republic of the Union of Myanmar Ministry of Foreign Affairs, “Press Release on

Situation in Rakhine State” <http://www.mofa.gov.mm/?page_id=43> (accessed 4 July 2017).

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43. Solidarity has been defined as the unity or agreement of feeling or action.81 The

meaning of solidarity ascribed by the Parties would be the solidarity of all persons

residing in Myanmar. In Clause 11, the term “of Myanmar” was used. This is in

contrast with the narrower phrase used in Clause 5, the “local Myanmar people”. As

the Parties did not choose to qualify Clause 11 to apply to a particular group within

Myanmar, the term “solidarity” ought to refer to the solidarity of all persons residing

in Myanmar, including the Rohingya.

44. The Statement is against the national interest and solidarity of Myanmar. When

interpreting a statement, the meaning a reasonable man, in the circumstances that the

statement was made, would be likely to understand ought to be given.82

45. Here, the Statement was interpreted by 102 of SPT’s employees and students, who are

representative of a reasonable man in Myanmar, as implying that the Myanmar

government was involved in ethnic cleansing.83 Such a statement, made in the context

of Myanmar, where the persecution of ethnic minorities is a controversial topic, has

the capacity to incite unrest. 84 This potential unrest is demonstrated by SPT’s

employees and students going on strike because of the Statement.85 Therefore, the

Statement is against the national interests of promoting peace and stability within

Myanmar.

46. The Statement is also against the solidarity of Myanmar as it is inciting division

within Myanmar. The local Myanmar community has always been divided on the

81 English Oxford Living Dictionary at “solidarity”, Oxford University Press,

<https://en.oxforddictionaries.com/definition/solidarity> (Accessed 5 July 2017). 82 Rubber Improvement Ltd v Daily Telegraph [1963] 2 WLR 1063 at 1069. 83 Moot Problem at [29]. 84 “Myanmar Conflict Alert: A Risky Census”, International Crisis Group (12 February 2014), available at

<https://www.crisisgroup.org/asia/south-east-asia/myanmar/myanmar-conflict-alert-risky-census> (Accessed 29

July 2017). 85 Moot Problem at [29].

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events taking place in Rakhine state, with support both for and against the

discrimination of Rohingyas.86 Illustrative of this divide is the fact that is that 102 out

of SPT’s 300 employees and students went on strike in protest of the Statement.87

Implying that the Myanmar government is involved in ethnic cleansing would divide

Myanmar further and is harmful to the solidarity of Myanmar. Therefore, AID

breached Clause 11.

(3) SPT validly elected to terminate the Agreement

47. Given AID’s breaches, SPT validly elected to terminate the Agreement as SPT did not

affirm the continuance of the Agreement (a), and unequivocally communicated its

election to terminate (b).

(a) SPT did not affirm the continuance of the Agreement

48. Where a party fails to perform a Fundamental Term, the innocent party may elect to

affirm the continuance of the contract or terminate the contract.88 The innocent party

is allowed a period of time after the breach to contemplate its decision to affirm or

terminate the contract (“Contemplation Period”).89 This is especially so when the

relationship between the parties is complex and the consequences of the breach take

time to ascertain.90 The performance of contractual obligations by the innocent party

86 A. K. M. Ahsan Ullah, “Rohingya Crisis in Myanmar: Seeking Justice for the ‘Stateless’” 2016 32(3) Journal

of Contemporary Criminal Justice 285 at 286. 87 Moot Problem at [18] and [29]. 88 Sinnadurai, supra n 55, at [12.01]. 89 Stocznia Gdanska SA v Latvian Shipping Co & Ors (No. 2) [2002] EWCA Civ 889 (“Stocznia”) at [87]. 90 Force India Formula One Team Ltd v Etihad Airway PJSC, Aldar Properties PJSC [2010] EWCA Civ 1051

at [113] and [122].

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during the Contemplation Period does not constitute an affirmation of the contract’s

continuance.91

49. Here, the relationship between the Parties was complex. The Parties had worked

together for approximately 8 years92 on the Venture.93 Termination of the Agreement

would signal the end of the Venture, resulting in immense repercussions for both

companies. Further, due to the imperceptible nature of Clauses 5 and 11, SPT required

time to properly ascertain the consequences of the Statement.

50. As such, SPT required a reasonable Contemplation Period from the time the

Statement was published to appropriately assess whether it should terminate the

Agreement.94 During this Contemplation Period, SPT’s actions, such as coaxing its

employees back to work, did not constitute an affirmation of the Agreement as it had

merely continued to perform its contractual obligations.

51. It was only when U Soe Myint informed Kyaw that the morale of SPT’s employees

and students remained at an all-time low95 that Kyaw realised the relationship with

AID was no longer tenable. Hence, Kyaw elected to terminate the Agreement on 10

January 2017. 96 This was a Contemplation Period of only 4 months, which was

reasonable in light of the parties’ long-standing relationship and the potential

repercussions of termination.

91 Id at [122]; Stocznia, supra n 89, at [87]. 92 Moot Problem at [16]. 93 Id at [26]. 94 Id at [29]-[30]. 95 Id at [38]. 96 Id at [40].

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(b) SPT unequivocally communicated its election to terminate

52. A contract is terminated under Section 39 by the innocent party’s unequivocal

assertion that he is no longer bound by the contract.97 Here, Kyaw, representing SPT

on 10 January 2017, expressed SPT’s intention to terminate the Agreement to

Asamura.98 Therefore, SPT unequivocally communicated its election to terminate the

Agreement to AID.

53. Accordingly, SPT had validly terminated the Agreement.

C. Even if a partnership exists between the Parties, the Agreement was still validly

terminated

54. Given that a partnership relationship is principally contractual, 99 it should be

subjected to the same incidents as other contractual relationships, so long as it is not

inconsistent with partnership law. 100 Further, the doctrine of repudiation may be

applied to partnership contracts in the same manner as other contracts and results in a

dissolution of the partnership.101

55. Here, Section 39 is co-extensive with the doctrine of repudiation.102 As such, Section

39 should apply to the Agreement. AID breached Clauses 5 and 11, which are

Fundamental Terms of the Agreement.103 SPT is thus entitled to elect to terminate the

Agreement under Section 39, and did validly do so, as described above. 104

97 Sinnadurai, supra n 55, at [12.21]. 98 Moot Problem at [40]. 99 M. Saharay, Textbook on Indian Partnership Law with Limited Liability Partnership Act (Universal Law

Publishing, 2010) at 39; Goldstein v Bishop [2013] EWHC 881 at [115]. 100 Ryder v Frohlich [2004] NSWCA 472 (NSW) at [133]. 101 Id at [121]-[126]. 102 Sinnadurai, supra n 55, at [12.07]. 103 Respondent Memorial at [32]-[46]. 104 Respondent Memorial at [47]-[53].

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Accordingly, the Agreement would have been validly terminated even if a partnership

had existed between the Parties.

III. SPT IS THE LEGAL OWNER OF THE EQUIPMENT

56. SPT is the legal owner of the Equipment through a gift by AID (A). Even if a

partnership is found between the Parties, SPT is still the legal owner of the Equipment

(B).

A. SPT is the legal owner of the Equipment through a gift by AID

57. For ownership of movable property to pass, the parties must have entered into a valid

consensual transfer of title in the property.105 Movable property may be transferred

voluntarily and without consideration by a gift.106

58. Under Myanmar law, movable property may be gifted if three elements are met:

a. the gift must be effected by delivery or a registered instrument under certain

conditions;107

b. the transferor must have had the intention to transfer ownership to the

transferee;108 and

c. the gift must be accepted by the transferee.109

A gift, when validly made, subsequently cannot be revoked. 110 Any subsequent

conduct after the completion of the gift is irrelevant.111

105 Michael Bridge, Personal Property Law (Oxford University Press, 2015, 4th Ed) (“Bridge”) at 153-193. 106 Transfer of Property Act (Burma Code Vol. X Part XVII) (Myanmar) (“Myanmar Transfer of Property Act”),

s 122. 107 Id, s 123. 108 Bridge, supra n 105, at p 171. 109 Myanmar Transfer of Property Act, supra n 106, s 122.

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59. Here, SPT is the legal owner of the Equipment as all the elements for a valid gift were

satisfied. There was sufficient delivery of the Equipment to SPT (1), AID had the

intention to transfer ownership of the Equipment to SPT (2) and the Equipment was

accepted by SPT (3).

There was sufficient delivery of the Equipment to SPT

60. The element of delivery is satisfied. For a gift to be delivered, there must be a clear

and unequivocal transfer of possession.112 Here, AID provided for the Equipment to

be imported into Myanmar by SPT.113 SPT was addressed as the consignee for the

Equipment on the bill of lading.114 Only the consignee of a bill of lading is entitled to

possession upon the importation of goods.115 Thus, only SPT could take possession of

the Equipment upon its importation into Myanmar, with AID having no control over

the Equipment. Therefore, there was a clear and unequivocal transfer of possession of

the Equipment constituting sufficient delivery.

AID had the intention to transfer ownership of the Equipment to SPT

61. The requirement of intention to transfer ownership is satisfied. An intention to

transfer ownership can be inferred from the surrounding circumstances.116

62. Here, AID intended to gift the Equipment to AID. First, SPT was named as the owner

of the Equipment on the operation and importation permits (“Permits”).117 AID was

110 Asokan v Lakshmikuty 2008 (70) ALR 311 at [28]. 111 Ibid. 112 Bridge, supra n 105, at p 172. 113 Moot Problem at [16]. 114 Additional Clarifications, Question 25. 115 LMJ International v Owners and Parties Interested in the Vessel M.V. Osm Arena 2011 (2) CHN 674 at [29]. 116 Kuppuswamy Chettiar v A.S.P.A. Arumugam Chettiar AIR 1967 SC 1395 at [5]. 117 Moot Problem at [43] and Additional Clarifications, Question 8.

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aware of this arrangement,118 yet did not protest for 8 years until the commencement

of the present dispute.119

63. Secondly, there is no requirement for SPT to be identified as the owner of the

Equipment on the Permits. AID could have but failed to request for the owner of the

Equipment on the Permits to be listed as either itself or its wholly owned Myanmar

subsidiary.120 Hence, SPT being named as the owner on the Permits evidences an

intention by AID to recognise SPT as the owner of the Equipment. Therefore, AID

had an intention to transfer ownership of the Equipment to SPT.

SPT accepted the Equipment

64. The element of acceptance is satisfied. Here, SPT’s acceptance of the Equipment is

evidenced by SPT’s willing importation of the Equipment,121 SPT’s identification as

owner and operator on the Permits, 122 and SPT’s claim that it “[has] all the

equipment”.123 Therefore, SPT has accepted the Equipment.

65. Accordingly, as the elements for a gift are satisfied, SPT became the legal owner of

the Equipment by gift.

118 Clarifications, Question 14. 119 Moot Problem at [16]. 120 Additional Clarifications, Question 33. 121 Moot Problem at [16] and [18]. 122 Id at [43]. 123 Id at [39].

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B. Even if a partnership is found between the Parties, SPT remains the legal owner of

the Equipment

66. SPT remains the legal owner of the Equipment as the Equipment would not constitute

partnership property. As s 14 of the Myanmar Partnership Act 124 and India

Partnership Act125 are identical, and similar to s 20(1) of the UK Partnership Act,126

Indian and English case law is persuasive.

67. Property acquired by a partner would only constitute partnership property if there was

an agreement between the partners to treat the property as partnership property.127

Such agreement is required even if the property was used for the purposes of the

partnership business. 128 In ascertaining the presence of an agreement, all the

circumstances surrounding the acquisition of the property must be considered.129

68. Here, there was no agreement that the Equipment would constitute partnership

property. First, the issue regarding the Equipment belonging to the Partnership was

neither explicitly drafted in the Agreement nor mentioned orally, despite the

numerous interactions between Asamura and Kyaw, and the Venture having operated

for more than eight years.130

69. Secondly, there was no intention by the Parties to treat the Equipment as partnership

property. AID had intended to gift the Equipment to SPT.131 Even after the Parties’

relationship had broken down, both parties claimed complete ownership of the

124 Myanmar Partnership Act, supra n 27. 125 India Partnership Act, supra n 26. 126 Partnership Act 1890 (53 & 54 Vict. c. 39) (UK). 127 Boda Narayana Murthy And Sons v Valluri Venkata Suguna AIR 1978 AP 257 at [8]-[9]. 128 Id at [9]; Arjun Kanoji Tankar v Santaram Kanoji Tankar (1969) 3 SCC 555 at [15]. 129 Roderick I’anson Banks, Lindley & Banks on Partnership (Sweet & Maxwell, 19th Ed, 2010) at [18-12]. 130 Moot Problem at [16]. 131 Respondent Memorial at [61]-[63].

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Equipment, with neither party suggesting that the Equipment was partnership

property.132

70. Therefore, since there was no agreement between the Parties that the Equipment

constitutes partnership property, the Equipment would not constitute partnership

property.

IV. THE JADEYE DISPUTE IS ARBITRABLE IN THIS ARBITRATION

71. The JADEYE Dispute is arbitrable as the curial law governing the arbitration is

Japanese law (A), and copyright issues are arbitrable under Japanese law (B).

The curial law governing the arbitration is Japanese law

72. Where parties do not indicate a choice of curial law, it is presumed that the curial law

follows the law of the seat,133 which would be deemed as the place of arbitration

unless otherwise stipulated by parties.134 Here, the Parties chose Japan as the place of

arbitration.135 Therefore, the seat of arbitration is Japan, and the curial law applicable

to this arbitration would be Japanese law.

B. Copyright issues are arbitrable under Japanese law

73. Whether an issue is arbitrable would depend on the curial law governing the

arbitration. 136 The curial law governing the arbitration is Japanese law. 137 The

Arbitration Law of Japan allows for the arbitration of all civil disputes capable of

132 Moot Problem at [43]. 133 Sulamérica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638 at [26] and [29]. 134 Respondent Memorial at [7]. 135 Moot Problem at [47]. 136 Blackaby, supra n 12, at [3.46]. 137 Respondent Memorial at [72].

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being settled by parties, except divorce or separation cases. 138 The existence and

ownership of a copyright is capable of being settled by parties.139 Therefore, the

JADEYE Dispute is arbitrable under Japanese law.

74. Accordingly, the JADEYE Dispute is arbitrable in this arbitration.

V. JADEYE IS NOT PROTECTED BY A COPYRIGHT IN MYANMAR

75. Should JADEYE not be protected under the Myanmar Copyright Act,140 SPT can

freely reverse engineer JADEYE. Under the Myanmar Copyright Act, two elements

must be satisfied before a work will be protected:141

a. the work is an original literary, dramatic, musical or artistic work; and

b. the work is published in Myanmar or made when the author was a citizen or

resident of Myanmar.

JADEYE is not protected under the Myanmar Copyright Act as JADEYE is not a

literary work (A), JADEYE is not published in Myanmar (B) and Yamashita was not

a resident in Myanmar when JADEYE was made (C).

JADEYE is not a literary work

76. Software is not considered an original literary work protected by the Myanmar

Copyright Act. Under Myanmar law, a statute is to be interpreted according to the

intention of the legislature when the statute was enacted.142 In order for a new object

to be subsumed under an existing term in a statute, the legislature must have

138 Japan Arbitration Law, supra n 14, Art 13(1). 139 Cook, supra n 19, at 72. 140 Copyright Act (Burma Code Vol. X Part XXI) (Myanmar) (“Myanmar Copyright Act”). 141 Id, First Schedule, s 1. 142 U On Khin v The Union of Burma [1952] BLR 158 at 168; Francis Bennion, Bennion on Statutory

Interpretation (2008, LexisNexis, 5th Ed) at p 470.

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contemplated that object’s inclusion under the existing term if that object had existed

when the statute was enacted.143

77. Here, the relevant term in the Myanmar Copyright Act is “literary work”. It is unclear

whether the legislature of Myanmar would have intended for software to be subsumed

under literary work when the Myanmar Copyright Act was enacted. Whether software

should be subsumed under literary work is controversial. While English courts have

considered software under literary work,144 Australian courts have held otherwise, that

certain forms of software ought not to be considered literary work145 and there has

been academic commentary suggesting the same. 146 Patents are also a widely

discussed possible solution for the protection of intellectual property in software.147

78. As such, whether software should be subsumed under literary work should be left to

the legislature. In several jurisdictions, the controversy over whether software is

considered as literary work under copyright law was only put to rest by legislation.148

Therefore, given that the Myanmar legislature has not included software under the

definition of literary work in the Myanmar Copyright Act, JADEYE should not be

considered a literary work.

143 Simpson v Teignmouth and Shaldon Bridge Company [1903] 1 KB 405 at 413. 144 Sega Enterprises Ltd v Richards [1983] FSR 73 at 75. 145 Computer Edge Pty Ltd v Apple Computer Inc [1986] 65 ALR 33 at 39-40. 146 Stephen Breyer, “The Uneasy Case for Copyright: A Study of Copyright in Books, Photocopies and

Computer Programs” (1970) 84 Harv. L. Rev. 281 at 340-350. 147 Andreas Grosche, “Software Patents – Boon or Bane for Europe?” (2006) Int’l J.L. & Info. Tech. 257. 148 Neil Hawke, “The Problems and Perspectives of Copyright Protection for Computer Software in English

Law” (1986) 2 Y.B.L. Computers & Tech at 84.

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B. JADEYE was not published in Myanmar

79. The term “publication” is defined under the Myanmar Copyright Act as “the issue of

copies of the work to the public”. 149 The term “public” has been defined as an

indeterminate class, implying a fairly large number of people.150 Factors indicative of

publication would be placing the works on sale and a willingness to supply the work

on demand.151

80. Here, JADEYE was not issued to the public. JADEYE was only issued to a

determinate class of two parties, SPT and AID.152 Further, there was no sale or any

intention to place JADEYE on sale by the Parties. Therefore, JADEYE was not

published in Myanmar.

C. Yamashita was not a resident of Myanmar when JADEYE was made

81. The term “resident” can be interpreted in two ways. First, it could mean physical

presence in the country at a certain point in time (“First Resident

Interpretation”).153 Secondly, it could mean one’s “settled or usual abode”154 of a

permanent nature155 in the country (“Second Resident Interpretation”). The term

must also be interpreted according to the context in which it occurs.156

82. Here, the Second Resident Interpretation should be adopted (1) and Yamashita does

not fulfil the Second Resident Interpretation (2).

149 Myanmar Copyright Act, supra n 140, First Schedule, s 1(3). 150 EMI Records Ltd v British Sky Broadcasting Ltd [2013] EWHC 379 at [31]. 151 Francis, Day & Hunter v Feldman & Co [1914] 2 Ch 728 at 731. 152 Moot Problem at [22]-[23]. 153 Adoption Application (No 52 of 1951) [1951] Ch 16 (“Adoption Application”) at 24. 154 Levene v Commissioners of Inland Revenue [1928] AC 217 (“Levene”) at 222. 155 Capt R.B. D’vaz v Mrs Celine D’vaz [1947] RangLR 292 at 294. 156 D.D. Grover v A.C. Koonda Controller of Rent Mandalay [1955] BLR 54 at 57.

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The Second Resident Interpretation should be adopted

83. In the context of the Myanmar Copyright Act, the Second Resident Interpretation

should be adopted. The Second Resident Interpretation has often been favoured by the

courts.157 This is because the First Resident Interpretation could result in an arbitrary

situation where persons who are only temporarily within the jurisdiction of the statute

are classified as residents whilst persons who mainly reside within but were

temporarily outside of the said jurisdiction at the relevant time would not.158

84. The arbitrariness that results from the First Resident Interpretation is especially

detrimental in the context of the Myanmar Copyright Act. The purpose of copyright

law is to encourage the making of works for the benefit of society.159 Should physical

presence suffice, foreign companies could easily attain copyright protection in

Myanmar. This would result in a monopoly on copyrights, inhibiting the idea

generation process locally and hindering the development of works in Myanmar,

contrary to the purpose of copyright law. Therefore, the term “resident” ought to be

interpreted according to the Second Resident Interpretation.

Yamashita does not fulfil the Second Resident Interpretation of “resident”

85. In ascertaining whether one has a “settled or usual” abode of a permanent nature in

the country, several factors are indicative:

a. the purpose of the stay in the country;160 and

b. the nature of accommodation in the country.161

157 Levene, supra n 154, at 222-223; Adoption Application, supra n 153, at 25. 158 Adoption Application, supra n 153, at 24. 159 Low v Routledge [1868] LR 3 HL 100 at 108. 160 Levene, supra n 154, at 224.

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86. Here, Yamashita’s presence in Myanmar was solely due to his work. 162 The

accommodation provided was also in connection to his work in Myanmar for AID.163

Upon resigning from AID, Yamashita did not stay on in Myanmar but went back to

Japan.164 The facts indicate the only connection Yamashita had with Myanmar was

his work with AID, which was temporary. Therefore, his “settled or usual” abode is

not that of Myanmar and Yamashita is not considered a resident of Myanmar under

the Myanmar Copyright Act.

87. Accordingly, JADEYE is not protected by a copyright in Myanmar.

VI. EVEN IF JADEYE WAS PROTECTED UNDER THE MYANMAR

COPYRIGHT ACT, SPT OWNS THE COPYRIGHT IN EQUITY

88. SPT owns the JADEYE copyright in equity as Yamashita owned the JADEYE

copyright (A), and subsequently assigned the JADEYE copyright to the Parties jointly

in equity (B).

Yamashita owned the JADEYE copyright

89. The Myanmar Copyright Act provides that the initial owner of a copyright in works

would be the author.165 The copyright would only belong to the author’s employer if

the author made the work in the course of his employment.166 For a work to be made

161 Levene, supra n 154, at 224. 162 Moot Problem at [16]; Additional Clarifications, Question 17. 163 Moot Problem at [18]. 164 Id at [25]. 165 Myanmar Copyright Act, supra n 140, First Schedule, s 5(1). 166 Id, s 5(1)(b).

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in the course of employment, the development of the work must be part of the

employee’s duties to the employer.167

90. Here, the development of JADEYE was not part of Yamashita’s duties at AID.

Yamashita was a finance executive while JADEYE was an operations management

software unrelated to Yamashita’s financial role in AID.168 Further, AID did not task

Yamashita with the development of AID. Yamashita took the initiative to develop

JADEYE on his own accord.169 Asamura only knew of JADEYE when Yamashita

informed him upon its completion.170

91. Therefore, JADEYE was not made in the course of Yamashita’s employment with

AID, and Yamashita owned the copyright to JADEYE.

B. Yamashita assigned the JADEYE copyright to the Parties jointly in equity

92. The Myanmar Copyright Act requires a legal assignment of a copyright to be in

writing. 171 However, where the requirements of a legal assignment are not met,

equitable ownership may be vested in the assignee when the assignor intends to assign

the copyright, if supported by consideration. 172 Consideration for an equitable

assignment of a copyright need not be executed.173

93. Here, Yamashita intended to transfer the JADEYE copyright to the Parties. Yamashita

willingly installed JADEYE onto all the computers and equipment used by the

167 Noah v Shuba [1991] FSR 14 at 25-26; Byrne v Statist Co. [1914] 1 KB 622 at 624 and 627; The Burma Oil

Co., Ltd v Ma Hmwe Yin (1935) I.L.R., Ran 553 at 560. 168 Moot Problem at [21]-[22]. 169 Additional Clarifications, Question 26. 170 Moot Problem at [21]. 171 Myanmar Copyright Act, supra n 140, First Schedule, s 5(2). 172 Kevin Garnett et al, Copinger and Skone James on Copyright (2011, Sweet & Maxwell, 16th Ed) at [5-177]

and [5-184]. 173 Western Front Ltd v Vestron Inc [1986] FSR 66 at 77-78.

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Venture174 and even handed JADEYE’s source code over to AID upon his resignation

from AID.175 These actions evidences Yamashita’s intention to transfer the JADEYE

copyright, as he did not view JADEYE to be his own. Yamashita further identified the

Parties as the beneficiaries of the JADEYE copyright, by stating that JADEYE was

“for the benefit of all of us”, referring to both SPT and AID. 176 Sufficient

consideration was provided by Kyaw’s offer of USD 18,000 to Yamashita. 177

Therefore, Yamashita assigned the JADEYE copyright to the Parties and the Parties

jointly own the JADEYE copyright in equity.

94. Accordingly, SPT owns the JADEYE copyright in equity and is entitled to reverse

engineer JADEYE.

VII. EVEN IF AID OWNS THE JADEYE COPYRIGHT, SPT DID NOT INFRINGE

ON THE COPYRIGHT

95. SPT stated that it would not carry out any acts of reverse engineering pending the

completion of this arbitration. 178 Additionally, it is possible for reverse engineering to

take place without infringing a copyright.179 Without knowing what form of reverse

engineering SPT would carry out, if at all, it is not possible to conclude presently that

SPT would infringe on the JADEYE copyright by reverse engineering JADEYE.

174 Moot Problem at [23]; Additional Clarifications, Question 32. 175 Moot Problem at [25]. 176 Id at [24]. 177 Id at [24]. 178 Additional Clarifications, Question 37. 179 David Bainbridge, Software Copyright Law (Butterworths, 1999, 4th Ed) at 159-160.

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PRAYER FOR RELIEF

For the foregoing reasons, the Respondent respectfully requests the Tribunal to declare that:

1. The Agreement between SPT and AID was validly terminated,

2. SPT is the legal owner of the jade-mining machinery and equipment, and

3. JADEYE is not protected by a copyright, or

4. Even if JADEYE is protected by a copyright, SPT and AID jointly owned the

copyright in equity.